Fariba Faiz Law Offices PC represents U.S. employers in PERM labor certification and employer-sponsored EB-2 and EB-3 permanent residence matters. With more than 28 years of immigration law experience, attorney Fariba Faiz advises companies in the San Francisco Bay Area and throughout the United States on prevailing wage strategy, PERM recruitment, job requirements, business necessity, Department of Labor audits, I-140 immigrant petitions, and long-term employment-based green card planning.
PERM is a highly technical process governed by detailed Department of Labor requirements. Decisions made at the beginning of a case, including how the position is defined, which minimum requirements are used, where the job will be performed, and how recruitment is conducted, can determine whether the case proceeds successfully or must be repeated.
For employers, PERM therefore requires more than completion of ETA Form 9089. Careful planning before recruitment begins can help identify issues involving job requirements, employee qualifications, prevailing wages, worksites, layoffs, business necessity, and future immigration strategy before those issues become difficult or impossible to correct.
What Is PERM Labor Certification?
PERM, or Program Electronic Review Management, is the Department of Labor labor certification process generally required when a U.S. employer sponsors a foreign national for permanent residence in the EB-2 or EB-3 employment-based immigrant categories.
Through the PERM process, the employer requests certification from the U.S. Department of Labor that there are not sufficient able, willing, qualified, and available U.S. workers for the permanent position and that employment of the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers.
PERM is an employer-driven process. The employer defines the permanent job opportunity, establishes its actual minimum requirements, obtains a prevailing wage determination, conducts the required recruitment, evaluates U.S. applicants, and files the labor certification application.
Approval of PERM does not itself provide permanent residence or immigration status. For most employer-sponsored EB-2 and EB-3 cases, PERM is the first stage of a three-stage process:
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PERM labor certification with the Department of Labor;
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Form I-140 immigrant petition with U.S. Citizenship and Immigration Services; and
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Adjustment of status in the United States or immigrant visa processing through a U.S. consulate when an immigrant visa is available.
The PERM Labor Certification Process
1. Position and Employee Analysis
A PERM case should begin with an analysis of the permanent position and the foreign national's qualifications.
The employer must establish the actual minimum education, experience, training, and skills required for the position. Requirements that exceed what is normally required for the occupation may require additional analysis and, in some cases, evidence of business necessity.
Counsel should also evaluate whether the foreign national possessed the required qualifications before entering the position upon which the employer intends to rely and whether experience obtained with the sponsoring employer can properly be used to satisfy the stated requirements.
This initial analysis can be particularly important for senior, technical, specialized, multidisciplinary, and rapidly evolving positions.
2. Prevailing Wage Determination
The employer generally requests a prevailing wage determination from the Department of Labor's National Prevailing Wage Center.
The prevailing wage is based on factors that may include the job duties, minimum requirements, occupation, level of responsibility, and area of intended employment. The employer must ultimately offer at least the applicable prevailing wage for the permanent position.
Careful analysis of the job description and occupational classification is important. A mismatch between the duties described by the employer and the occupational classification used in the prevailing wage request can create problems later in the PERM or I-140 process.
The prevailing wage determination and recruitment must also be coordinated carefully so that the employer satisfies the applicable validity periods and PERM recruitment timing requirements.
3. PERM Recruitment
Before filing the PERM application, the employer must conduct recruitment designed to test the U.S. labor market for qualified U.S. workers.
The precise recruitment requirements depend on whether the position is classified as professional or nonprofessional.
For professional positions, recruitment generally includes:
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a 30-day job order with the appropriate State Workforce Agency;
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two Sunday newspaper advertisements, subject to applicable regulatory alternatives;
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at least three additional recruitment steps from the methods permitted under the PERM regulations; and
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the required Notice of Filing and, where applicable, notice through the employer's customary in-house media.
Additional professional recruitment may include methods such as an employer website, job-search website, job fair, campus placement office, employee referral program with incentives, professional organization, private employment firm, campus recruiting, local or ethnic newspaper, or radio or television advertisement.
Recruitment must comply with detailed requirements concerning timing, content, location, and documentation.
4. Review of U.S. Applicants
The employer must evaluate U.S. workers who apply for the position.
Applicants cannot be rejected for arbitrary reasons or because another candidate is preferred. Rejection must be based on lawful, job-related reasons connected to the minimum requirements for the position.
The employer should carefully document its recruitment results and the lawful reasons for rejecting applicants who do not satisfy the position's requirements.
Applicant review is one of the most consequential parts of the PERM process. An apparently minor inconsistency between the advertised requirements, actual minimum requirements, and reasons given for rejecting an applicant can become significant in a Department of Labor audit or supervised recruitment.
5. Recruitment Report and PERM Audit File
After recruitment is completed, the employer prepares and maintains documentation supporting the PERM application, including the recruitment report and evidence relating to the recruitment campaign.
The recruitment report generally identifies the recruitment conducted, the number of applicants, the number of U.S. workers rejected, and the lawful job-related reasons for rejection.
The employer must maintain the documentation supporting the PERM application for five years from the date the application is filed.
Because most supporting documentation is not submitted with the initial PERM application, maintaining a complete and defensible PERM audit file is critical. If the Department of Labor issues an audit, the employer may be required to produce the documentation supporting the attestations made in the application.
6. Filing ETA Form 9089
After the required recruitment and waiting periods have been completed, the employer files ETA Form 9089, Application for Permanent Employment Certification, with the Department of Labor.
The application contains detailed information concerning the employer, permanent position, worksite, job duties, minimum education and experience requirements, prevailing wage, recruitment, and foreign national's qualifications.
Consistency is critical. The information in the PERM application should correspond with the prevailing wage request, recruitment materials, employer records, and documentation establishing the foreign national's qualifications.
7. Department of Labor Adjudication
The Department of Labor may:
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certify the PERM application;
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issue an audit requesting supporting documentation;
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require supervised recruitment; or
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deny the application.
An audit does not necessarily mean that the Department believes the employer violated the regulations. Some applications are selected for additional review. Other audits may focus on particular characteristics of the job opportunity, recruitment, employer, or foreign national's qualifications.
A properly developed PERM file should therefore be prepared with the possibility of an audit in mind from the beginning of the case.
8. I-140 Immigrant Petition
After PERM certification, the employer generally must file Form I-140, Immigrant Petition for Alien Workers, with USCIS during the validity period of the approved labor certification.
At the I-140 stage, USCIS evaluates issues including the requested EB-2 or EB-3 classification, the foreign national's qualifications for the certified position, and the petitioning employer's ability to pay the offered wage.
The PERM and I-140 stages should therefore be planned together rather than treated as unrelated filings.
PERM Timing and Priority Date Strategy
PERM cases involve multiple sequential processing periods and regulatory deadlines.
The process may include:
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preparation of the position and minimum requirements;
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prevailing wage processing;
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mandatory recruitment;
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required recruitment waiting periods;
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Department of Labor adjudication;
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possible audit or supervised recruitment;
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I-140 filing and adjudication; and
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waiting for an immigrant visa number when the applicable category or country of chargeability is backlogged.
The date the Department of Labor accepts the PERM application for filing generally establishes the foreign national's priority date.
That priority date can become extremely important for employees born in countries with significant employment-based immigrant visa backlogs. Starting PERM earlier may therefore affect not only the employee's immigration planning but also the timing for a spouse and dependent children.
PERM strategy should also be coordinated with the employee's underlying nonimmigrant status, particularly when the employee is approaching important H-1B time limits.
Complex PERM Issues
Not every PERM case involves a conventional position with a single worksite and standard occupational requirements. More complex cases may require analysis before the prevailing wage request or recruitment begins.
Business Necessity and Unusual Job Requirements
Requirements that exceed those normally associated with an occupation may receive additional scrutiny.
Business necessity may become important where the employer requires unusual experience, specialized skills, a foreign language, a combination of occupations, or other requirements that may be considered restrictive.
The employer should be prepared to demonstrate that the requirement bears a reasonable relationship to the occupation in the context of the employer's business and is essential to performing the job duties.
Experience Gained With the Sponsoring Employer
Using experience gained by the foreign national while working for the sponsoring employer can create significant PERM issues.
Whether that experience may be counted can depend on the relationship between the prior position and the PERM position, including whether the positions are substantially comparable and how much of the duties overlap.
This issue should be analyzed before the employer establishes the minimum requirements for the PERM position.
Alternative Requirements
Some employers can legitimately hire candidates through more than one combination of education and experience.
Where alternative requirements are used, the PERM application and recruitment must be structured carefully, including consideration of the regulatory requirements governing alternative qualifications.
Remote, Hybrid, and Multiple-Worksite Positions
Remote work has made worksite analysis increasingly important in PERM cases.
The employee's work location can affect the prevailing wage, area of intended employment, Notice of Filing, recruitment strategy, and the description of the job opportunity.
Employers with remote, hybrid, roving, client-site, or multiple-worksite positions should address work location before recruitment begins rather than attempting to correct the issue after filing.
Layoffs
Recent layoffs can trigger additional recruitment obligations when the employer has laid off U.S. workers in the area of intended employment in the same or a related occupation during the relevant regulatory period.
The employer may need to identify and notify potentially qualified laid-off U.S. workers and document the results.
A layoff analysis should therefore be conducted early when applicable.
Ownership, Familial Relationships, and Closely Held Companies
PERM requires a bona fide job opportunity that is open to U.S. workers.
Cases involving ownership interests, close family relationships, very small companies, or circumstances suggesting that the foreign national exercises substantial influence over hiring may receive additional scrutiny regarding whether a genuine job opportunity exists.
These cases require careful factual analysis before filing.
Corporate Restructuring and Changes During PERM
Mergers, acquisitions, reorganizations, worksite changes, promotions, and material changes in job duties can affect employment-based immigration strategy.
Whether a change requires a new PERM case depends on the nature and timing of the change. Employers contemplating significant organizational or position changes should evaluate their immigration consequences before implementing them when possible.
Schedule A Occupations
Certain occupations designated by the Department of Labor under Schedule A are treated differently because DOL has predetermined that there are insufficient U.S. workers who are able, willing, qualified, and available in those occupations.
Professional nurses and certain physical therapists are among the occupations that may qualify under Schedule A.
These cases do not follow the standard PERM recruitment and DOL filing process. Instead, the employer generally submits the labor certification documentation directly in connection with the I-140 petition to USCIS after satisfying the applicable requirements.
PERM Special Handling for College and University Teachers
College and university teachers may qualify for special handling under the PERM regulations when selected through a qualifying competitive recruitment and selection process.
Special handling differs significantly from standard PERM recruitment and has its own evidentiary and filing requirements, including an important filing deadline measured from the faculty member's selection.
Employers should evaluate special handling eligibility promptly after the selection process rather than waiting until the ordinary PERM process would otherwise begin.
Common PERM Problems, Audits, and Denial Issues
PERM applications can encounter problems involving:
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recruitment that does not comply with DOL timing or content requirements;
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inconsistencies among the prevailing wage request, recruitment, Notice of Filing, and ETA Form 9089;
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improper rejection of potentially qualified U.S. applicants;
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job requirements that appear unduly restrictive;
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insufficient evidence of business necessity;
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problems involving experience gained with the sponsoring employer;
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inappropriate or inconsistent occupational classification;
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foreign-language requirements;
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combination occupations;
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alternate job requirements;
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remote or multiple worksites;
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layoffs affecting the occupation or area of intended employment;
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ownership or familial relationships raising bona fide job opportunity issues;
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failure to document recruitment properly; or
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failure to maintain required supporting documentation.
PERM is unusually unforgiving because some errors cannot simply be corrected after filing. Depending on the issue, an employer may need to conduct new recruitment or begin the process again.
Careful case development before recruitment is therefore generally more valuable than attempting to repair a defective case after filing.
PERM Audits and Supervised Recruitment
The Department of Labor may select a PERM application for audit and require the employer to produce supporting documentation.
An audit may request materials relating to the prevailing wage, recruitment, Notice of Filing, recruitment report, applicant review, business necessity, foreign national's qualifications, or other aspects of the application.
In some cases, DOL may require supervised recruitment, under which recruitment is conducted under Department of Labor supervision.
Employers facing an audit should evaluate both the specific documentation requested and the underlying issue that may have prompted additional scrutiny.
PERM Denials and Requests for Reconsideration
A PERM denial does not necessarily end the matter.
Depending on the reason for denial and the existing record, the employer may have options that include requesting reconsideration by the Certifying Officer or seeking review before the Board of Alien Labor Certification Appeals.
In other situations, beginning a new PERM case may be more effective than pursuing administrative review.
The appropriate strategy depends on the nature of the denial, whether the defect can legally be cured within the existing record, the employee's immigration status and priority-date considerations, and the comparative time involved in appeal versus refiling.
PERM, H-1B Status, and Green Card Planning
For employees in H-1B status, the timing of PERM and I-140 filings can have important consequences for maintaining work authorization beyond the ordinary H-1B limitation period.
PERM should therefore be viewed as part of a broader immigration strategy rather than as an isolated Department of Labor filing.
For employees facing approaching H-1B limits, employers should consider green card sponsorship early enough to preserve as many extension and immigration options as possible.
The same planning may involve priority-date retention, immigrant visa backlogs, dependent family members, international travel, and possible future changes in employment.
Changing Jobs During the PERM and Green Card Process
Changing employment during an employer-sponsored green card case requires analysis of the stage of the case.
A PERM application is based on the sponsoring employer's offer of a permanent position that the foreign national intends to accept upon obtaining permanent residence. The foreign national's current employment situation does not necessarily have to be identical to the future PERM-sponsored position.
However, changes to the sponsoring employer, permanent job opportunity, job duties, worksite, or other material terms can affect whether the existing PERM remains viable.
Later in the green card process, different rules may apply. Under INA §204(j), certain employment-based adjustment applicants whose Form I-485 has remained pending for at least 180 days may be able to move to a new permanent job offer in the same or a similar occupational classification without beginning the entire employment-based green card process again.
Because the rules differ substantially depending on whether the case is at the PERM, I-140, or I-485 stage, job changes should be evaluated before they occur whenever possible.
How Fariba Faiz Law Offices PC Assists Employers With PERM
Representation may include:
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evaluating the permanent position and proposed minimum requirements;
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reviewing the foreign national's education and experience;
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prevailing wage strategy and occupational classification analysis;
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preparing prevailing wage requests;
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evaluating business necessity and restrictive requirements;
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analyzing experience gained with the sponsoring employer;
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advising on alternate requirements;
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developing compliant PERM recruitment;
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advising employers regarding U.S. applicant review;
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preparing recruitment reports and PERM audit files;
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preparing and filing ETA Form 9089;
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responding to Department of Labor audits;
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advising regarding supervised recruitment;
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evaluating PERM denials and reconsideration strategy;
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preparing related EB-2 and EB-3 I-140 immigrant petitions;
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analyzing employer ability to pay at the I-140 stage;
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coordinating PERM with H-1B status and extension strategy;
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advising regarding priority dates and Visa Bulletin considerations;
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evaluating job, worksite, and corporate changes during the green card process; and
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coordinating the case through adjustment of status or immigrant visa processing.
Frequently Asked Questions About PERM Labor Certification
How long does PERM labor certification take?
PERM timing depends on several separate stages, including prevailing wage processing, recruitment, mandatory waiting periods, and Department of Labor adjudication. An audit or supervised recruitment can substantially extend the process.
Employers should generally view PERM as a long-term process rather than expecting the labor certification stage to be completed within a few months. Current government processing times should be reviewed when planning a particular case because they change over time.
Who files the PERM application, the employer or the employee?
PERM is an employer-sponsored process. The U.S. employer is responsible for the permanent job opportunity, recruitment, applicant evaluation, and attestations made in the labor certification application.
The foreign national is the beneficiary of the process but cannot independently file a PERM application without a sponsoring employer.
Does the employer have to hire every U.S. worker who applies?
No. PERM does not require an employer to hire every applicant.
The employer must determine whether an applicant is an able, willing, qualified, and available U.S. worker for the PERM position. An applicant who does not satisfy the employer's lawful minimum requirements may generally be rejected for a job-related reason.
The employer cannot, however, reject a qualified U.S. worker merely because it prefers the foreign national.
Can an employer tailor the job requirements to the foreign national's qualifications?
The PERM position must reflect the employer's actual minimum requirements for the job rather than requirements created simply to match the sponsored employee's background.
Requirements that appear unusually restrictive or exceed those normally required for the occupation can create additional scrutiny and may require evidence of business necessity.
Can experience gained with the sponsoring employer count toward the PERM requirements?
Sometimes, but this requires careful analysis.
PERM regulations restrict reliance on experience gained with the sponsoring employer in certain circumstances, particularly where the prior position and the PERM position are substantially comparable.
The prior and proposed positions should therefore be reviewed before the minimum requirements are established.
Can an employee change jobs while PERM is pending?
Potentially.
PERM concerns a sponsoring employer's offer of permanent employment and the foreign national's intention to accept that employment upon becoming a permanent resident. The employee's current employment does not always have to be the PERM-sponsored position.
However, a change involving the sponsoring employer or the permanent job opportunity itself can have different consequences. The facts should be reviewed before making a change.
What happens if the employer changes the employee's work location?
It depends on the nature and location of the change.
PERM is tied to an area of intended employment, and worksite changes can affect the prevailing wage and recruitment upon which the labor certification was based. Remote work and relocations therefore require particular attention.
Some changes may be permissible while others may require a new PERM process.
What happens if PERM is audited?
The Department of Labor may require the employer to submit documentation supporting the application and recruitment.
The employer's PERM audit file should therefore be assembled and maintained as part of the original case rather than created for the first time after an audit arrives.
How long must an employer retain PERM records?
Employers generally must retain the PERM application and supporting documentation for five years from the date the application is filed.
This includes documentation necessary to support the employer's attestations and recruitment.
What happens if PERM is denied?
Depending on the reason for the denial, the employer may consider a request for reconsideration, administrative review, or beginning a new PERM case.
The best option depends on whether the problem can be addressed within the existing record and whether preserving time or a priority date affects the strategy.
Does PERM guarantee approval of the I-140 petition?
No.
PERM certification establishes the Department of Labor component of the case. USCIS separately adjudicates the I-140 petition and determines whether the beneficiary qualifies for the requested immigrant classification and certified position and whether the petitioner satisfies applicable requirements, including ability to pay the offered wage.
Does an employee have to remain with the sponsoring employer forever after PERM is approved?
No, but the employer-sponsored permanent job offer and the parties' intentions must be bona fide.
At later stages of the process, employment-based adjustment portability may become available. In appropriate cases, INA §204(j) permits an adjustment applicant whose I-485 has remained pending for at least 180 days to move to a new permanent job offer in the same or a similar occupational classification.
This is distinct from the rules governing changes while PERM itself is pending.
Is PERM required for every employment-based green card?
No.
PERM is generally required for conventional employer-sponsored EB-2 and EB-3 cases.
Other employment-based categories may not require PERM, including EB-1A extraordinary ability, EB-1B outstanding professor or researcher, EB-1C multinational manager or executive, and EB-2 National Interest Waiver cases.
Schedule A cases also use a different labor certification procedure.
When should an employer start the PERM process?
Employers should consider starting well before an employee approaches the end of available nonimmigrant status.
This is particularly important for H-1B employees because the timing of the labor certification and I-140 process can affect options for extending H-1B status beyond the ordinary six-year limitation.
Starting early can also help establish an earlier priority date in categories affected by immigrant visa backlogs.
Experienced Counsel for Employer-Sponsored Permanent Residence
A successful PERM strategy begins well before recruitment advertisements are placed.
The permanent position, minimum requirements, prevailing wage, employee qualifications, worksite, recruitment strategy, and eventual I-140 petition are interconnected. Addressing those issues at the outset can reduce avoidable problems later in the process.
Fariba Faiz Law Offices PC advises employers throughout the San Francisco Bay Area and across the United States on PERM labor certification, EB-2 and EB-3 immigrant petitions, and related employment-based immigration strategy.
Schedule a Consultation
Employers considering permanent residence sponsorship, HR professionals evaluating PERM strategy, and employers with existing PERM cases involving complex issues, audits, or second-opinion concerns may schedule a confidential consultation.Schedule a Consultation with Fariba Faiz
This page provides general information about U.S. immigration law and is not legal advice. Immigration laws, Department of Labor procedures, processing times, and government policies are subject to change. Individual cases should be evaluated based on their specific facts.
